The Chair set out the schedule for the meeting and confirmed that the Committee's next
meeting will be in Bismarck on January 27-28, 2005. The Chair also welcomed the
Committee's newest member, Ms. Jeanne L. McLean, the assistant dean of the UND School
of Law.

A member pointed out a typographical error on page 12 of the minutes. Ms. Schmitz
MOVED to approve the minutes with a correction on page 12. Judge Leclerc seconded. The
motion to approve the minutes CARRIED unanimously.

Staff informed the Committee that the annual petition for amendment of court rules had
been presented to the Supreme Court and that a hearing on the petition had been scheduled
for Monday, October 4, 2004, at 2:45 p.m. Staff invited any members with suggestions on
issues that should be raised at the hearing to provide necessary information

-2-

to staff.

The Chair and Judge Schmalenberger, Chair of the Court Technology Committee, briefed
the Committee on a major revision of N.D. Sup. Ct. Admin. R. 41 (Access to Judicial
Records) that was being worked on by the Court Technology Committee.

Staff reviewed the actions taken by the Committee on Rule 3.1 at the April 2004
meeting
and pointed out the changes that had been made to the Rule 3.1 proposal.

Judge Nelson MOVED for approval of Rule 3.1, as amended. Ms. Schmitz seconded.

A member said it was important to define "original" in this rule to give guidance to the
court clerks. Another member commented that the proposed changes were innocuous but
that more extensive change would likely be necessary if electronic filing was put in place.

A member commented that calling the first submitted document an original did not make
it an original. A member suggested that another term should be substituted for "original."

Mr. Kuntz MOVED to strike "original" and replace with "filed copy" on page 35, line 21.
Mr. Sturdevant seconded.

A member said using "copy" would be confusing and suggested "document" would be an
appropriate term instead.

Without objection, Mr. Kuntz amended his motion to substitute the term "document" for
"copy."

A member said that substituting this term would create even more confusion given the
wording of the provision. A member asked whether the "original" in a court file needed to
be an "original" with actual signatures and seals. A member said that most filed documents
were not "real" originals.

A member suggested that the "filed document" be "treated as" the "original," even if not
the "real original." A member pointed out that N.D.R.Ct. 2.2 defined a filed fax copy as the
"original." The member said that a similar approach should be taken with this rule.

-3-

A member said that substituting "treated as" for "considered" in the proposed language
would accomplish the desires of the Committee.

Judge Nelson MOVED to substitute a new motion for Mr. Kuntz's motion. Under the
substituted motion, the term "considered" on page 35, line 21, would be replaced with
"treated as" with the other proposed language retained. Mr. Kapsner seconded. The motion
to substitute CARRIED 19-0.

Judge Nelson's motion CARRIED unanimously.

Staff clarified that the version of the rule before the Committee contained changes already
approved by the Committee and before the Supreme Court. The changes related to originals,
however, have not yet been approved by the Committee and were not before the Supreme
Court. A member said that if the Committee approved the changes regarding originals, staff
should bring those changes to the Supreme Court immediately so that the additional changes
could be implemented with the approved changes.

A member suggested that changes to the explanatory note would be needed to conform to
the change just approved by the Committee. Some members commented that the
explanatory note term "designated" might be a better term than "treated as" and could
perhaps be used in the rule itself. Other members said using "treated as" better reflected
what would be done with filed documents.

A member suggested that the newly approved language still seemed to be at odds with the
existing subdivision allowing copies to be filed when originals were lost. A member
responded that the new language seemed to allow anyone to file a copy without permission
from the court.

Ms. Schmitz MOVED to change the term "original" in lines 26-27 to "document" in order
to eliminate the conflict. Ms. Moore seconded.

A member said the purpose of the subdivision seemed to be to allow copies to be filed
when filed documents were lost, either by the clerk or judge. A member said the proposed
language would help make this clear.

The motion CARRIED 16-3.

-4-

A member asked whether the previously approved language on confidentiality of social
security numbers and other personal information would bar state authorities from getting
access to non-redacted judgments in such things as child support matters. The consensus
was that the proposed rule language, existing language in N.D. Sup. Ct. Admin. R. 41, and
statutes would allow such access.

A member raised a concern that non-governmental entities with a legitimate use for social
security numbers contained in judgments would not be able to access the numbers. Members
responded that redacted documents would be available. A member commented that it was
absolutely necessary to provide protection for social security numbers contained in court
filings, and that the rule as developed by the Committee was as workable as possible.

The motion to approve the proposed rule as amended CARRIED unanimously.

Ms. Schmitz MOVED that Rule 3.1 as amended be sent to the Court immediately so it
could be considered with the Committee's annual rules package. Judge Leclerc seconded.
The motion CARRIED unanimously.

Staff reviewed the actions taken by the Committee on Rule 11 at the April 2004
meeting
and pointed out the changes that had been made to the Rule 11 proposal.

The Chair explained that the Committee was considering the rule as part of its survey of
all the criminal rules and that, if the proposed changes were approved, the rule would be
presented to the Supreme Court with the rest of the amended criminal rules as part of the
criminal rules package.

Mr. Sturdevant MOVED for approval of the rule as amended. Mr. Kuntz seconded.

The Committee discussed correction of a typographical error in the proposal. Without
objection, the Committee approved correction of the error.

A member asked whether the harmless error provision in the rule was necessary, since case
law already holds that errors in plea procedure are not automatically reversible errors.

A member asked whether adopting the federal nolo contendere plea would be appropriate.
The member observed that North Dakota already had accepted the Alford plea.

-5-

A member announced opposition to adoption of the nolo contendere plea, indicating that
it would serve no purpose. The member said the plea was an easy way out for offenders who
do not want to admit they did anything wrong, in particular sex offenders. The member said
that allowing offenders to escape admission of wrongdoing was harmful to rehabilitation and
to victims.

A member said that the nolo contendere plea was acceptable in the federal system because
of the greater number of white collar crimes under federal law. The member said it would
be a problem allowing sex offenders to make nolo contendere pleas under state law.

A member said that not allowing a defendant to plead guilty when facts are questionable
is preferable to allowing nolo contendere or Alford pleas.

A member asked why there was an exception in the proposed rule allowing organizational
defendants to avoid appearances to enter pleas. A member responded that the amendment
seemed to be an expansion of the original North Dakota rule, which specifically allowed a
corporation, not the more generic organization, to avoid being present to enter a plea.

A member said that no organization, including a corporation, should be able to avoid being
absent at a court proceeding. A member responded that the rule proposal did not bar a judge
from requiring a corporation's presence at a plea proceeding.

A member said the proposed language made sense because entry of a not-guilty plea
triggers significant events in the case calendar and should not be automatic.

The motion CARRIED unanimously.

A member said the old rule language on page 40, lines 14-17, was superior to the proposed
language because, even when a defendant does not appear personally, the defendant should
be advised of the listed rights in the Rule 43 statement, Form 17. The member said the old
language made this clear.

A member asked whether exclusion of certain federal provisions from a state plea
proceeding could be attacked under federal habeas corpus law. A member responded that
it was unlikely since the state handled some things, like forfeiture, differently from the
federal government.

A member asked whether it was necessary to advise of the possibility of forfeiture
proceedings or of prosecution for perjury if the defendant lies. A member said that courts did
not advise defendants about everything and that guilty plea proceedings could last for days
if the court was required to advise a defendant about every conceivable consequence of a
guilty plea.

A member pointed out that the Supreme Court had recently stated that defendants need to
be advised whether they will have to register as sex offenders if they plead guilty. A
member said the Committee should attempt to be inclusive in determining what advice to
require courts to provide defendants. The member said that the federal list was developed
based on exhaustive research and inclusive because giving a defendant full advice best
serves the interest of justice.

A member said that the better approach is to have general requirements for guilty plea
proceedings. A member said that compiling specific requirements that must be recited in
every case, regardless of whether applicable, just wastes time. The member also said that
parallel changes to Rule 5 on initial appearances need to be made to match any change made

-7-

to Rule 11.

A member observed that the federal courts in North Dakota only have a few hundred guilty
plea proceedings a year while state courts handle many thousands, so it doesn't necessarily
make sense to include all the federal requirements or a lot of too specific requirements.

A member said that requiring courts to cover too much questionably relevant material in
a guilty plea proceeding takes the focus off of the important items that need to be covered.
The member said defendants may tune information out if too much is presented. The
member said the law is clear on the basic things defendants need to be told.

A member agreed it would be better to limit the number of items courts are required to
discuss with defendants to those things that are of real importance so that defendants will be
able to hear and focus on the important information.

A member said that the federal language is clearer than the language in the present rule.
The member said that the federal list contained some items that were not applicable in state
court and that those items were not part of the pending motion.

A member asked why the supervised release language should be deleted. A member
explained that North Dakota does not have supervised release.

The motion to substitute CARRIED 18-1.

Mr. Hoffman's motion, with substituted language, CARRIED 14-5.

Mr. Hoffman MOVED to add a new paragraph (C) to page 42 after line 55 incorporating
language from the federal rule regarding sentencing range. Judge Bohlman seconded.

A member asked whether the language regarding types of plea bargains needed to be
separated into (A), (B) and now a proposed (C). The member said that, in practice, the
various types of plea bargains that the proposed rule categorizes are often combined
together.

A member said the harmless error section was not useful--that whether a given error was
harmless needed to be decided by the courts. A member replied that the section was
important because it made clear that substantive rights needed to be implicated before an
error would cause reversal.

A member said that, by having the section, the definition of harmless error was not
expanded--instead, the section simply made it clear that error needed to impact substantive
rights before there could be a reversal.

The motion DEFEATED 5-14.

A member commented that adoption of a new type of plea agreement in subparagraph
(c)(1)(C) and division of plea agreements into types under paragraph (c)(1) was unnecessary
and might lead to the end of oral plea agreements and create a need for a written plea
agreement requirement. The member said the proposed new requirements were way too
complicated.

A member said that plea agreements could encompass all the different types categorized
under paragraph (c)(1) and that this could create a confusing situation for the courts and
defendants. A member responded that it should be possible for a court to explain the impact
of a given plea agreement to a defendant.

The motion to adopt proposed changes and include the rule in the criminal rules package
CARRIED 16-4.

The Chair explained that since the rule was going into the criminal rules package that the
Committee could revisit it if any members thought this was necessary. On request from a
member, staff was instructed to include a copy of the rule with approved amendments when
the draft minutes were distributed to the Committee.

CEREMONY HONORING JUDGE LAWRENCE LECLERC AND JUDGE BRUCE
BOHLMAN

The Chair announced that this was the final Committee meeting for Judge Leclerc and
Judge Bohlman. Both judges are retiring at the end of 2004. The Chair presented both
judges with plaques recognizing their many years of service to the Committee.

Staff explained that Mr. McLean had proposed adoption of a Wisconsin rule provision
allowing parties to request a change of judge when a matter was remanded after an appeal.
Staff explained that the rule proposal before the Committee contained Mr. McLean's
requested change as well as the change of judge provisions currently part of N.D.C.C. §
29-15-21.

Mr. McLean MOVED for approval of the rule as amended. Ms. Schmitz seconded.

A member observed that the right to change of judge was longstanding in North Dakota.
The member said that this was a matter of court procedure that should be in the court rules
rather than the century code. The member said that having the right to change a judge was
an important right that gives the appearance of fairness.

The member said that giving litigants the additional right to change a judge after appeal and
remand also would contribute to giving litigants a sense that the system was fair.

A member said it would be appropriate to supersede the statute and add the right to change
judge after an appeal. The member said in addition it should be spelled out that the right to
bump a judge without cause is a right that can only be used one time in a matter. The
member said that it was not clear in the statute that the bump right was a one time only right.

A member pointed out that, in a divorce proceeding, it may be allowable to exercise
numerous bumps.

A member stated an objection to superseding the statute. The member said that the
legislature in the statute gave the people a tool to protect themselves from the judiciary and
it would be wrong for the judiciary to take control of that tool.

Mr. Kapsner MOVED to delete the sentence at lines 51-54 of the proposal, allowing
presiding judges to decline a request for change of judge in cases involving multiple parties
on a side. Mr. McLean seconded.

A member said if there are multiple parties, every party should be able to exercise the right
to bump a judge. The member said that moves were ongoing to abolish non-partisan judicial
elections and allow judge candidates to participate in party politics. The opposing factors
at work were the free speech rights of judge candidates to engage in party politics vs.

-10-

the due process rights of litigants to a fair and impartial proceeding.

The member said that retaining the ability to bump a judge in North Dakota would allow
litigants some defense against a judge they believe to be biased based on potentially partisan
speech by the judge in trying to get elected. The member said that because partisan judicial
elections are likely in the future, it is important to allow any party to bump a judge.

A member said that if the power to bump a judge was extended to all parties (as when there
are multiple defendants) it is very likely that the parties could run out of judges in a district
to bump. A member said that the possibility of problems is significant if unlimited bumping
is allowed and that some mechanism needs to be put in place that would at least allow a
presiding judge to say no to multiple bump requests by parties with similar interests.

A member pointed out that the Supreme Court in Traynor v. Leclerc had
concluded that
bumping judges was a procedural matter and thereby laid the groundwork for replacement
of the statute by a rule. The member said the Committee should take the step of adopting
the rule.

A member said the present system, which allowed presiding judges to step in and limit
multiple bump requests, was hard enough to administer in cases involving disgruntled
litigants and multiple appeals. The member suggested the Committee look at ways of
limiting opportunities to request judge bumps rather than expanding them by allowing
bumps after appeals or limiting a presiding judge's power to control bumps.

A member said that the proposal to allow multiple parties involved in a lawsuit to each
have
the right to bump judges was unwise. The member said that extremist groups could use this
right in nuisance lawsuits, joining multiple plaintiffs or defendants so that judge bumping
could be continuous. The member said that there must be a mechanism to regulate the
number of times one side can bump a judge.

A member described appearing before the legislature on multiple occasions in order to fight
challenges to the judicial replacement right. The member said that the Committee should
not attempt to supersede the judge replacement statute. The member said that putting the
judiciary in charge of how the judge replacement right is exercised would be like putting the
fox in charge of the henhouse. The member said elimination of the right entirely was not
unlikely if a rule superseding the statute was adopted.

A member said that it was not accurate to conclude that parties bump judges strictly
because of a the judge's perceived attitude to the party's position in the case. A bump might
have nothing to do with the issues in the case but instead be based on the client's concern

-11-

about a particular judge, often based on personal reasons. The member said that the right to
change a judge is a privilege the legislature granted to all litigants and to suggest that all
parties on a side have the same interests is not consistent with the individual right granted.
The member said there had to be limits on the right, but that a client's litigation interest (their
side) was not always the same as a client's personal interest or concerns.

The motion DEFEATED 2-17.

Mr. McLean MOVED to amend page 65, lines 64-65 of the proposal to limit a party's right
to demand a change of judge after remand when the party had earlier filed a demand for
change of judge. Judge Nelson seconded.

A member said that the language of the motion--just because a party files a demand for
change of judge does not mean the demand is granted. The member suggested using the
word "granted" instead of "filed." The language of the motion was changed by unanimous
consent.

The motion CARRIED 18-1.

Judge Schmalenberger MOVED to add language to page 63, line 26 of the proposal
consistent with the change approved under the previous motion. Judge Leclerc seconded.

A member said that it would be inappropriate to add the proposed language in paragraph
(a)(4) of the rule. The member said that if the right to bump a judge is a right that can be
exercised only once, this should be stated earlier in the rule.

A member said if the Committee approved the proposed change, it might as well delete the
whole paragraph because the proposed change would eliminate the change of judge rights
specified in the paragraph, i.e., the right to bump a judge during different stages of a divorce
action.

A member said it was important to specify somehow that the right to bump a judge was a
right that a given party could only exercise one time in a given action. A member suggested
that it be added to the section where the presiding judge's role is outlined.

The motion DEFEATED for lack of majority 9-9.

A member pointed out that subdivision (d)--the existing Rule 3.3--did not mesh well with
the newly proposed material. The member said that the focus of the subdivision was on
ways for judges to avoid continuing to handle a matter, and that it was being used

-12-

extensively for that purpose, especially in Cass County.

A member commented that the Committee had worked extensively to develop existing Rule
3.3 and having the change of judge provisions added in on top of this made the rule very
confusing. The member said that the change of judge language should be separate.

Judge Hagerty MOVED to leave Rule 3.3 unamended and to create a new rule using the
proposed amendments. Judge Bohlman seconded.

A member commented that the proposed change of judge rule was not an improvement on
what the legislature did in the statute and that Rule 3.3 should be left alone and the change
of judge procedure left in the statute.

A member said that the proposal would expand the rights of litigants and that it should be
in a rule, not a statute. The member said it made sense, though, to make the change of judge
rule a separate rule.

A member said that splitting the change of judge material out into a separate rule was
appropriate because the proposal, at present, contained two different subjects. Another
member agreed that the existing rule should be kept unaltered and that the change of judge
material should be in a different rule.

The motion CARRIED 17-2.

A member commented that having a rule only including the new change of judge after
appeal right would be acceptable. The member said that the rest of the proposal was
unacceptable because it was not an improvement on the statute.

A member said that taking on the legislature by superseding a statute was not a good idea
given that the proposed rule was no improvement on the statute. The member said it was
also not a good idea to have a new rule containing only the post-appeal change of judge
provision because parties could already obtain such a change of judge by motion to the
Supreme Court.

A member said that it was clear that the courts had power to establish rules regarding
requests for judge changes, given that the Supreme Court has expanded the right through
case law. The member added that the right to change judge after appeal did not seem to be
a very extensively accepted right and that adding a rule just to provide this right might not
be appropriate.

-13-

A member commented that it is legitimate for parties to be concerned when they get a
reversal on appeal and their case is remanded back to the same judge who oversaw the earlier
negative result. A member responded that most judges would not mind getting bumped on
a remand, but there tends be a great waste of effort when a judge is taken off a case after
working on it and getting to understand it through the course of a trial. The member said that
parties have the right to a fair trial, not a perfect trial.

A member said that changing judges is always an emotional issue. The member said that
perhaps the Committee needs to reflect before superseding the change of judge statute.
Another member added that the new rule as proposed did not eliminate the uncertainty
regarding whether a party could get more that one bump, and that additional reflection was
required on how to eliminate this.

The motion to approve proposed amendments in the form of a new N.D.R.Ct. 3.4 entitled
Demand for Change of Judge was DEFEATED 3-17.

Staff explained that amendments to Rule 46's provisions regarding bail sureties had been
suggested by court administrative personnel. Staff explained that the proposal before the
Committee included the proposed changes and additional form and style changes based on
the recent amendments to Fed.R.Crim.P. 46.

Judge Hagerty MOVED for approval of Rule 46 as amended. Judge Geiger seconded.

A member said that the administrator who recommended that the Committee look at the
rule said the proposed changes reflect the concerns expressed. A member commented that
allowing 90 days for sureties to apply to set aside a bail forfeiture seemed like a very long
time--the member said sureties get notice as soon as a defendant fails to show up and should
not need 90 days to decide whether to ask for a forfeiture to be set aside.

A member said that sureties are entitled to get back some of the forfeiture if they produce
the defendant. A member added that it makes sense to give them 90 days to challenge a
forfeiture since they have 90 days to pay on the forfeiture.

A member said that people who are ticketed for a variety of offenses post cash bail and this
bail may be used to pay their fine. The member said this system had worked well and had
saved the state many thousands of dollars. The member said it was not desirable to

-14-

create more ways for people to get forfeited bails refunded.

A member said that the rule seemed inconsistent with N.D.C.C. § 26.1-26.6-09
which
allows a refund for surety who returns a defendant who failed to appear.

A member question the wording referring to "any surety." The member asked whether
there would ever be more than one surety on a bond. A member answered that this was
possible when necessary to get adequate backing for a bond.

Mr. Kuntz MOVED to amend language on line 107 to substitute the word "the" for the
word "any." Judge Simonson seconded. The motion CARRIED unanimously.

A member asked why an agent should be suspended when a surety defaults.

Mr. Kuntz MOVED to amend language on line 117 to delete the words "and its agent."
Mr. Kapsner seconded.

A member said that the agents in many cases are the sureties, they assemble groups of
backers to secure bail and control which company writes the bond. A member said that
agents are often the ones who have the duty to make the actual pay off when bail is forfeited.
The member said that if there is a delay in payment, it is often the agent who is responsible.

A member that the surety responsible to make payment should be suspended if there is no
payment and other sureties or agents should not be affected. A member commented that the
statute cited previously suggested that the insurance commissioner may be responsible for
suspending agents, not the courts.

A member said that the rule is necessary because problems with agents refusing to pay are
not uncommon. Judges need the power to suspend agents to make them comply with surety
obligations.

A member suggested that the insurance commissioner has jurisdiction to discipline agents.
A member responded that suspension of a surety or agent under the proposed language of
the rule is a limited punishment since it only extends as far as the district judge's jurisdiction.
A member expressed concern that even this sort of suspension would impinge on the
insurance commissioner's licensing powers.

A member replied that a suspension under the rule would not be a license suspension but
a suspension from issuing bonds within a judge's jurisdiction, which is within a judge's
power.

-15-

A member commented that the need to amend the rule arose because there is no clear
procedure in place to guide court officials and clerks when a surety fails to pay on a bond.
The member said that surety bonds were not a good option in many cases because the surety
will only guarantee the appearance of a person and will not guarantee the person's
compliance with other bond conditions.

A member said that under the statute the insurance commissioner has only the power to
control an agent's license. The member said that allowing the courts to suspend an agent's
operations within a district would not impinge on the commissioner's power.

The motion DEFEATED 9-11.

A member asked whether N.D.C.C. § 26.1-26.6-09 conflicted with the proposed
amendments. Staff was assigned to research whether additional amendments should be
made to conform with N.D.C.C. § 26.1-26.6-09.

The meeting recessed at approximately 4:30 p.m., on September 23, 2004.

September 24, 2004 - Friday

The meeting was called to order at approximately 9:00 a.m., by Justice Dale V. Sandstrom,
Chair.

Staff reported on N.D.C.C. § 26.1-26.6-09 and its potential conflict with the
proposed
amendments to Rule 46. Staff reported that the statute seemed to impose a substantive
obligation to make refunds to bonding companies under certain circumstances. Staff
suggested that no modification was necessary to the proposed rule because the remission
provision allowed courts to make refunds under the circumstances outlined in N.D.C.C.
§ 26.1-26.6-09.

A member said that the problem which precipitated the Committee's examination of Rule
46 appeared to be an administrative problem, and mostly a problem about how to deal with
bond money. The member said that this did not seem to be a judicial problem and that

-16-

the rule did not need to be amended in order to solve it.

A member responded that the judiciary needs to be involved with problems in court
administration and the rule needed to be amended to give the judges and the court staff
guidance. The member said that the administrator who requested the Committee look at this
problem was looking for guidance and, in particular, time guidelines for resolving forfeiture
issues.

A member said that under N.D.C.C. § 26.1-26.6-09, a refund is due the surety only
when the bondsman returns the defendant to the court. The member said that when this
happens, it happens in a short time after forfeiture because the bondsman hired a bounty
hunter to retrieve the defendant. The member said most of the time when a defendant shows
up in court more than six months after forfeiture is when law enforcement picks the
defendant up. The member said the statute would not have much impact under normal
circumstances.

A member said the statute gave sureties a substantive right. The member said any
procedural changes to the rule would not alter this right. The member asked, if a bond gets
forfeited and the bond money is collected within 90 days, what happens to the money and
how can it be remitted if the bond company tries to take advantage of the statute?

A member said that bail forfeitures generally go to the fines fund or the general fund. A
member asked how a bond company could then get their money back. A member said that
orders had been issued against the state demanding return of money in the past.

A member said there were some problems addressed by the proposed amendments that
were primarily clerical and administrative. The member said, however, that there were
larger problems that the proposal solves, such as what needs to happen once a forfeiture is
declared in order to actually obtain the forfeited funds. The member said the proposal laid
out a process.

A member questioned whether the process set out by the proposal needed to be in the
criminal procedure rules. The member said that the existing rule already gave courts
jurisdiction over sureties and a mechanism to handle forfeitures.

A member said that if the Committee did nothing about this issue, some other committee,
such as the presiding judges, would decide what procedure to implement. Another member
said that if there was going to be a procedure for handling bond forfeitures, it should be in
the rules so people affected could find it.

-17-

A member suggested that if the clerks needed advice, they could go to the state's attorney.

A member said that, under the current rule, someone seeking to recover on a forfeited bond
merely had to bring a motion. A member responded that the proposed amendment had value
because it set deadlines for the such a motion and set out a procedure. A member said this
procedure also would apply to city courts and it would be of value to city court clerks to
point to rule when questions arose about bond forfeiture procedure.

A member explained that state's attorneys do not generally file formal motions on bail
forfeitures--instead they make oral motions at the time the defendant fails to show. The
member said that in such a case a surety might not get notice of the forfeiture.

A member pointed out that the proposed amendment also had a punitive aspect, allowing
suspension of sureties who did not pay up within 90 days of forfeiture. The member said
this punitive provision would be useful and provide guidance to judges. The member noted
that it was not unusual for sureties to fail to pay timely on a forfeited bond.

A member agreed that the proposed amendment provided a good mechanism to enforce
payment on forfeited bonds. A member related that it was a costly process for sureties to
retrieve absconding defendants. A member said that N.D.C.C. § 26.1-26.6-09, which
gives sureties a right to refunds when they return defendants, arose out of the Kyle Bell case
and involved a defendant who skipped a substantial bail and was returned after significant
effort by the bondsman.

A member suggested that merely adding a requirement to the current rule forcing
prosecutors to make formal motions to recover forfeited bonds would solve the problems
pointed out by the clerks. A member responded that such a change would only deal with a
tiny part of the problem. The member said it was particularly important to have the proposed
90-day deadline for sureties to request a forfeiture be set aside. The member said there
needed to be more structure than provided by the current rule.

The motion to approve the rule as amended and send it to the Supreme Court as part of the
annual rules package CARRIED 15-4.

A member said that electronic filing pilot projects had been proposed and two courts were
in the process of buying equipment to put the projects in place. The member said this was
part of the enhanced records management project.

The Chair said that the goal of the enhanced records management project was to create an
electronic record in every district court case. The Chair said that Stark and McLean counties
were pilot counties for the project. These counties are setting up to scan all material their
clerks receive and to file the scanned materials into an electronic filing system.

The Chair said that the main problems with the current system are that paper files are not
always accessible in all cases by everyone who needs them and that documents cannot
always be added to the files in a timely and accurate fashion. The Chair said with enhanced
records management court files will always be available and updated and files will be
viewable from wherever the judge may be.

The Chair said that the enhanced records management program, to begin with, would rely
on scanning to create electronic documents. The Chair said the Supreme Court, however,
was now filing electronic documents sent by email or fax.

A member said that electronic filing was inevitable but it was probably too early to have
a rule, especially before the pilot projects had even begun and before court staff was trained
to deal with electronic documents.

A member responded that judges are getting more and more documents by email, such as
proposed orders. The member said that there are many documents that it would make sense
for the courts to receive by email and that establishing a rule would be a logical step. The
member also said that a higher surcharge should be imposed in the rule for documents longer
than 20 pages to discourage overly long documents.

A member commented that the issue of electronic filing had been hovering in the
background for many years. The member said that the message coming out of technology
conferences on the subject was that courts should not move too fast to put in a system. The
member said electronic filing works best in simple matters, such as small claims and

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landlord/tenant matters, where there is not a great quantity of evidence involved. The
member said it would be better to wait until the pilot projects unfold to establish a rule.

A member asked whether it was envisioned under the proposal that documents would be
filed electronically and then printed out and made part of a paper file. Staff explained that
the procedure in the Supreme Court when a document was e-filed was to print the document
out. The conclusion was that in counties with enhanced records management, no paper copy
would be needed while in others counties, e-filed documents would need to be printed out
and added to the paper file. The rule was designed to allow clerks in all counties, not just
enhanced records management counties, to receive e-filed documents.

A member asked whether, under enhanced records management, documents would be
accessible merely by logging on to the existing unified court information system. A member
responded that this was the ultimate goal of enhanced records management. The member
said all clerks now have UCIS and all judges can have it.

A member said that it is important for judges to be able to continue to access paper files so
as to understand the history of a case and see all the documents together. The member said
it would not be a good alternative to have to print everything in a file out from the computer
or to try to work with images on a screen.

A member responded that the goal of enhanced records management was to eliminate paper
entirely. There would be no paper file--however, the electronic file could be accessed
simultaneously by anyone who wanted it without the chance of it being missing or being
unavailable. A member said one purpose of the pilot project would be to see things work
in practice without a paper file.

The Chair said most of the motions filed without the Supreme Court were being filed
electronically and that an increasing number of briefs were being filed electronically because
this was a lower cost option for litigants.

A member asked if electronic service would go along with e-filing. Members pointed out
that the proposal has an e-service provision. A member asked how technological
incompetents or pro se litigants would be able to deal with documents served on them
electronically.

The Chair explained that the model the state courts were working on was one that would
use existing technology, such as service by email, rather than imposing a proprietary system.
A member observed that it was presumed under the rule that if a party has an email address,
that party can receive email service of a document. The member said that it was

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unclear whether the bar would be ready for such a step--most lawyers are used to working
with paper delivered or received at the office.

Staff explained that the Supreme Court's e-filing rule was developed in two stages, with
e-filing first, and then when that worked, e-service added. Staff indicated that it did not
make sense to have e-filing without e-service.

A member said that the Supreme Court does not confront the same challenges that trial
courts do when it comes to filing of documents, particularly in civil practice. The member
said that a trial court judge typically needs to go through 20-30 documents to prepare for a
hearing, while the Supreme Court has all the information it needs in party briefs. The
member also said that bankruptcy court, which relies on e-filing, also has not had to deal
with the problems e-filing might create in trial court because evidence is not filed in
bankruptcy court.

The member said a major problem with e-filing in trial courts would be how the gatekeeper
function would be exercised. The member said it would not be surprising if pro se litigants
started e-filing new documents every day.

A member said that it would be unwise to defeat this proposal based on a desire not to see
e-filing. The member said it is necessary to try different things to see if they work. The
member said e-filing had to be looked at in practice to see whether it would work.

A member said that, because of spam filters, people have lost confidence in whether their
email is received. The member asked how attorneys would know whether their e-filed
documents had been received. Staff explained that the clerks are required to send
acknowledgment of receipt and filing. If no confirmation is received, the attorney will know
the e-filed document was not received.

A member said that e-filing confirmation might not be a problem, but added that e-service
is a problem area since no one would know whether their opponent had received an e-served
item unless that opponent voluntarily sent confirmation. A member suggested programming
email to provide a "read receipt." Members suggested that this was not foolproof.

A member said the proposal seemed like a good first step because it primarily provided
attorneys with an alternate method to get a document into the clerk's hands and into the
paper file--emailing the document instead of mail or delivery. The member said that e-service
was a bigger problem, especially because effective service was a nebulous issue
when service was by email. The member also said it was unclear how the three day rule and
other

-21-

time rules would apply.

A member said that the rule provision allowing service by fax only when email service was
not possible was inappropriate. The member said that some attorneys are adamant about
never releasing their email address because this can create unlimited access for clients and
others seeking 24/7 responses. The member said that these attorneys would need to rely on
fax for electronic service.

A member said that as new rules were established to provide new service methods, the rules
continue to shift toward a "zero-deadline" through eliminating the three day rule and the
leeway it gives. The member said human nature is to wait until the last day to meet a
deadline. The member said that if the email doesn't go through or some other technical
problems occurs when trying to e-file and e-serve, failing to meet the "zero-deadline" is a
likely result. The member said there had to be some way to insert protections into the rule.

A member also asked why paying fees was necessary as part of e-filing. The member
asked why should the client pay for filing documents when they do not pay now. The
member asked if attorneys would be getting bills for 50 cents. A member replied that the
payment is required so the document can be printed for judges who will not use the
computer.

Mr. Kuntz MOVED to change ".50" on page 114, line 32, to ".10." Ms. Moore seconded.

A member said the cost of running a printer was not 50 cents a page--most firms charge
their clients 5-10 cents a page to make copies. A member responded that someone has to pay
for the copies and someone has to do the copying, whether it's lawyers, clients, or taxpayers.

The Chair observed that lawyers submitting documents to the Supreme Court have no
problem with paying the price because it is much less time consuming for a lawyer to
compose and send an email than it is to print out and assemble a document and then have it
shipped or delivered. The Chair also said there was no need to worry about length of
delivery time when emailing as opposed to sending in the regular mail.

The motion CARRIED unanimously.

A member asked why the rule contained a preference for email filing and discouraged fax
filing. Staff explained this was based on the Supreme Court rule and the Supreme Court had
not accepted fax filing at all prior to the rule, unlike the district courts who have accepted

-22-

fax filing. The Chair pointed out that new fax receiving programs essentially turn faxes into
emails, so fax filing and email filing are no longer so different.

A member observed that the proposal was denominated as a Supreme Court administrative
order and asked whether that was because it was a pilot project order. The Chair explained
that when a new procedure becomes available, not everybody wants to use the procedure.
The Chair said pilot projects allowed attorneys and court personnel the chance to build their
confidence with the new procedure.

A member said that if the Committee was going to eliminate the preference for email over
fax filing, that fax filing should simply not be mentioned in the rule. The member said the
focus of the rule was on email filing and that N.D.R.Ct. 2.2 governed fax filing. The
member suggested the rule deal only with the subject of email filing.

A member asked what procedure would be followed for the adoption of the proposed
administrative order. The member said that there were some complex problems created by
the electronic service portion of the rule and modification of the procedural rules might be
necessary if electronic service is implemented.

A member said that the electronic service portion of the rule needed work, but that the goal
of any modification should be simplicity, such as requiring an electronic certificate of service
or affidavit of service to establish that a document had been e-served. The member
suggested that people serving documents electronically should also retain a copy of the sent
email because this establishes when the item was sent.

A member said that it was not clear whether the three day rule, which applies to service by
mail or commercial carrier, would apply to e-service. The member noted that fax
transmissions have been specifically excluded from the three day rule. The member said
language should be added to the order indicating how the three day rule would apply to
email filing and service.

A member suggested that staff be assigned to supply language on the three day rule for
review at a future meeting. A member suggested that language simply be added to the

-23-

proposal indicating that items served electronically be treated as if they were mailed for
purposes of the three day rule. The member said that emails are not always dealt with
promptly, especially when the addressee was out of the office.

A member said that perhaps the rule should be amended to allow e-filed documents to be
e-served only when the recipient consents to e-service. The member said that allowing
agreements to use email for service was better than cramming e-service down an opponent's
throat.

The Chair said the it was desirable to have e-service when e-filing is used because a
document should reach the other party as soon as it reaches the court. The court will get an
e-filed document immediately--if the document is not e-served, the judge will have had it
for several days before the other party even gets to look at it. Having e-service in tandem
with e-filing will help prevent parties from being blindsided by something that has been e-filed.

A member responded that attorneys who do not have email, or are not astute is using it, will
still be blindsided when a document is e-filed.

Ms. Schmitz MOVED to add a new subsection (4) on page 115, after line 50 providing that
"any document electronically served must be treated as if it were mailed on the date of
transmission for purposes of computation of time." Mr. Sturdevant seconded.

A member asked whether just using the language from N.D.R.Civ.P. 6 instead of the new
proposed language would be preferable.

The motion CARRIED unanimously.

A member said that allowing items to be e-filed until 11:59 p.m., was too late. Staff
explained that this provision was added to the Supreme Court's e-filing rule because the
Supreme Court is always open.

Ms. Moore MOVED to add language to page 114, line 26, providing that documents must
be submitted "by the close of normal business hours" rather than 11:59 p.m. Mr. Hoffman
seconded.

Members said that clerk's offices close at different times: 5:00, 4:30, noon on summer
Fridays. A member said this is why the proposed language specified close of business hours
rather than a time.

-24-

A member asked whether a person could e-file on weekends or holidays. A member
responded that you could, but such a filing should be treated like a document received in the
mail on a weekend or holiday--as if it was received at the opening of business on the next
day the office was open.

Judge Leclerc MOVED a substitute for Ms. Moore's motion, extracting language from
N.D.R.Ct. 2.2 and making it part of the proposal. Judge Simonson seconded.

A member said that use of the term "normal business hours" in the original motion and the
substitute version might create a trap for the unwary. A member said that in the substitute
motion, filing is complete when the transmission is received, whenever that may be, but the
filing does not get processed until the next day the court is open. Members suggested this
could still create problems if a party sent the document thinking the courthouse was open
when it had in fact closed early for the weekend.

A member said that it was difficult to say what the "normal business hours" were for rural
courthouses, especially in the summer in courthouses without air-conditioning. A member
said that some specific time should be chosen to put in the rule to ensure certainty.

Ms. Schmitz MOVED to add language to the end of line 26 providing that "a document
filed after 5:00 p.m. will be considered filed on the next business day." Judge Leclerc
seconded.

A member asked whether the proposed language was necessary. The member said the
effect of filing after 5:00 p.m. was apparent from the rule. The member also said that with
the three-day rule applicable to e-filing, filing on a weekend would not adversely affect a
deadline.

A member said that court staff were use to dealing with paperwork. The member said that
court staff will get use to dealing with e-filed documents, but the process will be easier if the
rules for dealing with electronic documents are similar to the rules for paper. The

-25-

member said that if paper comes into court offices after they close, the staff processes it and
date stamps it the next working day. The member said electronic documents should be
treated the same way.

The motion CARRIED unanimously.

A member asked whose clock would be used to determine whether a document was
submitted by 5:00 p.m. The member said that in a law office, every computer typically
shows a different time. A member responded that the time shown on clerk computers was
being coordinated by ITD and that the time used by the clerks would likely be the time the
document was recorded as received on the clerk's computer. A member responded that
lawyers tend to push to the very limit, and this lack of synchronization might lead to late
submissions by lawyers.

Judge Geiger MOVED to add language to line 7 indicating that the order would apply only
to pilot project locations. Judge Foughty seconded.

A member said that the question raised by the motion was whether e-filing should apply
statewide or only in a limited number of locations. A member said this issue was an
administrative problem that should be addressed by the state court administrator. A member
said that it was the state court administrator who asked that the issue be discussed and that
there was no suggestion that e-filing be limited only to certain counties.

A member said that the enhanced records management pilot project was something
different than the pilot project contemplated by the proposed order, which would allow for
electronic filing in all counties. A member said that putting limits on where e-filing was
allowed would cause confusion among attorneys.

A member said that by developing a statewide rule the Committee was exceeding its
authority and encroaching on the role of the court administrator. The Chair pointed out that
the rule was not dependent on a county having enhanced records management for e-filing
to occur--the county would only need to have email.

A member said that if e-filing was going to apply to all counties and all clerks it should be
integrated into the procedural rules and not go out as a pilot project. A member responded
that administrative orders were more flexible and easier to modify if necessary. A member
agreed that it would be more useful to implement e-filing in an order because the need for
fine tuning was inevitable.

The motion DEFEATED 9-11.

-26-

A member suggested that once the rule goes into effect, it will be necessary for attorneys
to send out electronic courtesy copies of e-filed documents to judges. A member said this
would be no problem since judges all know how to press the delete key.

The motion to approve the rule as amended and send to the Supreme Court as part if the
annual rules package CARRIED 19-0.

Staff explained that the model for Rule 702, Fed.R.Ev. 702, had been amended in 2000 and
the Committee had not yet considered whether to include the amendments in the state rule.
Staff explained that the proposal before the Committee contained the federal amendments,
which were developed in response to Daubert v. Merrell Dow Pharmaceuticals, 509
U.S. 579
(1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

Mr. Plambeck MOVED for approval of Rule 702 as amended. Judge Schmalenberger
seconded.

A member observed that North Dakota had not adopted a version of Fed.R.Ev. 703. The
member said that Rule 703 is more important than Rule 702 and that the Committee should
consider the changes to both rules together. The member said that if the Committee adopted
the proposed changes to Rule 702, it would essentially be telling the Supreme Court to adopt
Daubert.

A member said that the proposed changes should not be adopted because the changes are
not supported by the decisions of the Supreme Court, which has not adopted Daubert.
The
member also said that at least 90 percent of the experts in North Dakota courts are
physicians, accountants, custody evaluators and real estate appraisers. The member said
none of these experts really can be evaluated under Daubert standards.

A member said the changes should be adopted because they would provide additional
guidance to the trial courts. The member said that while the Supreme Court had not yet
adopted Daubert it had also not rejected it. The member said that Daubert and
Kumho Tire
were interpretations of Fed.R.Ev. 702, which had been adopted unchanged in North Dakota.
The member said that, traditionally, the Supreme Court has found federal interpretations of
rules to be persuasive guidance in interpreting similar North Dakota rules.

The member said commentators do not agree whether Daubert and Kumho
Tire will

-27-

limit the admission of expert testimony or open the door to more expert testimony. The
member suggested that the opinions may close the door to some junk science and open the
door to novel ideas that are supported by science. The member said there is a tendency to
misread Daubert and that the change to Fed.R.Ev. 702 clarified the standards that courts
need
to apply in regard to expert testimony. The member said the rule change puts the focus back
on the reliability of the expert testimony and is a worthwhile change.

A member said that adoption of Daubert principles in North Dakota is not
appropriate. The
member said the rule we have works. The member also said state courts handle matters
foreign to federal court, such as custody disputes. The member said these cases involve
psychologists and custody evaluators who are allowed to testify based on having a license,
which is informal, but works. The member said the Daubert criteria better fits matters
like
accident cases, where accident reconstructors may have limited credentials.

A member replied that the situation in custody cases provides an argument for change. The
member said many experts in domestic relations cases provide testimony that is not based
on any kind of science or learning, including psychologists, play therapists, and related
experts. The member said the changes should be adopted.

A member said such problem experts could be eliminated under the standards of present
rule 702. A member replied this was not possible if 702 needs to be interpreted in a liberal
manner.

A member said North Dakota's Stein case adopted the essential reliability element
of the
Daubert test, but that Stein came out before the formal adoption of N.D.R.Ev.
702 and is not
an interpretation of that rule. The member also said the proposed changes to Rule 702 were
not a blanket adoption of Daubert and Kumho Tire but an articulation of a
reliability test
similar to the Stein test.

A member said that there are good arguments for having a tool to get rid of junk science
in the court system, but the way the proposed amendments are structured requires judges to
make judgments they are not qualified to make. The member said that judges are not
qualified to decide expert testimony matters based on scientific training so they instead
decide based on their own predilections about how the tort system should work. The
member guessed that if North Dakota's district judges were surveyed, most would not want
to adopt Daubert.

The motion to approve Rule 702 as amended CARRIED 10-8. Because the motion to
approve gained less than a two-thirds majority, the rule will not be sent to the Supreme Court
but considered again at a future meeting.